BRAJ LAL SETH Vs. PUNJAB NATIONAL BANK

JUDGEMENT

(1.) We have heard learned counsel for the appellant. We are not satisfied that any case is made out for interference. The Punjab National Bank had advanced money to the appellant and other defendants and the later had mortgaged their property by depositing title deeds of a house in Adarsh Colony, Rampur. The Bank filed a suit for recovery of Rs, 2,86,235/- . This suit was decreed exparte. The application to set aside the exparte decree was rejected. The present appeal is directed against that order. We have perused the order. The court below has given adequate reasons for refusing to set aside the exparte decree. We see neither any error of law or fact to admit the appeal for hearing.

(2.) Learned counsel contended that since the appellant had filed an affidavit in support of the application under Order 9 Rule 13 Civil Procedure Code which had not been controverted, the application for setting aside the exparte order could not be rejected by the Court below. He referred to the case law wherein the courts have expressed the view that uncontroverted affidavits are acceptable. That the material on record, as is evident from the judgment of the court below, shows that there was an acknowledgement card on which there was signature of the appellant. The appellant had not denied his signature on that acknowledgement card nor had he asked for the signature on the acknowledgement card to be compared with any admitted signature of his. In this state of the matter, it is clear that he had notice of the suit. However, inspite of the above he had not appeared before the court. Once it is held that he had notice of the suit the burden was on him to show that there was sufficient cause for his non-appearance on the date fixed before the court. On the contrary, his plea that he never got notice, which is belied by his signature or the acknowledgement card, the question of sufficient cause, therefore, does not arise. Where the facts alleged in an affidavit, although uncontroverted, are belied by the existing material on the record, then the allegations are no longer enough to be acted upon. The question whether the appellant had notice or not of the suit is a question of fact and had decided by the court below on the basis of existing material on the record, e.g., the uneontroverted signature on the acknowledgement due card. In this view of the matter, we do not find any merits in the case.

(3.) Further, it is significant that only one out of 4 defendants have filed this appeal. This shows that other of 4 defendants are not aggrieved.